Mr. SANTORUM. Mr. President, the Catholic Charities case in Boston, just 2 years after the introduction of same- sex marriage in America, highlights the growing concerns and indicates that the impact of this development on religious freedom has ceased to be a hypothetical discussion.

As Maggie Gallagher wrote in her Weekly Standard piece ‘‘Banned in Boston,’’ ‘‘[w]hen religious-right leaders prophesy negative consequences from gay marriage, they are often seen as overwrought . . . [and that the] First Amendment . . . will protect religious groups from persecution for their views about marriage.’’

So who is right? Is the fate of Catholic Charities of Boston an aberration or a sign of things to come? Some say we are overreacting, but the truth is that while the ramifications in the battle for social policy, procreation, and even protecting children may be clear, the real—but hidden—battlelines are for the religious liberty of all faiths. Recently the Becket Fund convened a group of scholars to discuss the implications of same-sex marriage on religious liberty. This group was from all parts of the political spectrum and had varying viewpoints, but all agreed on one thing—the legalization of same-sex marriage posed a real threat to the free exercise of religion.

As I mentioned before, one of the participants, Maggie Gallagher, went on to write a prescient account of the participants’ views on this issue, and I admit it was disturbing to read.

In times past, it would have been unthinkable for a Christian or Jewish organization that was opposed to same- sex marriage to be treated as racists or bigots. But today the unthinkable may have become the inevitable. As Anthony Picarello summarizes, ‘‘All the scholars we got together see a problem; they all see a conflict coming. They differ on how it should be resolved and who should win, but they all see a conflict coming.’’ Why? Because of cases like that of Catholic Charities in Boston.

As I discussed a little bit on the floor yesterday before I ran out of time, Catholic Charities in Boston has been the adoption provider in Massachusetts for many of the hardest to place children, including children with special needs. Following the legalization of same-sex marriage in Massachusetts, the Boston Globe reported that Catholic Charities of Boston had placed a small number of children with same- sex couples. Cardinal O’Malley of Boston responded that Catholic Charities would adhere to the Vatican statement prohibiting such placements in the future. That produced a hubbub with the Catholic Charities Board that was later quelled, but if Catholic Charities thought that was the end of the issue it was wrong.

Like many States, Massachusetts requires that an entity be ‘‘licensed’’ by the State in order to do adoptions. And to get the State license, the entity must agree to obey State laws barring discrimination—including in Massachusetts the prohibition on discrimination based on sexual orientation. When the Massachusetts Supreme Court legalized same-sex marriage, discrimination against same-sex couples was also prohibited. These requirements juxtaposed with Catholic doctrine put the Catholic Church-affiliated Catholic Charities into a bind—one that legislatures, including this one, have often solved by allowing faith-based and religious organizations to maintain their integrity.

Knowing that, Cardinal O’Malley and Governor Romney tried to get a religious exemption for Catholic Charities from the Massachusetts legislature. The silence from the politicians in that State was deafening. Without that protection, the bottom line is that the legislators in Massachusetts chose to put Catholic Charities out of the adoption business.

Some say that the rightwing is pushing to pass this amendment, but I take you back to the scholars from the Becket Fund conference. Marc Stern, the general counsel for the center-left American Jewish Congress can hardly be called a rightwinger, but when asked what he would say to people who dismiss the threat to free exercise of religion as evangelical hysteria his quote was—‘‘It’s not hysteria, this is very real . . . Boston Catholic Charities shows that.’’ He went on to say that ‘‘in Massachusetts I’d be very worried.’’ Stern noted that while the churches themselves might have a first amendment defense if a State government or State courts tried to withdraw their exemption, ‘‘the parachurch institutions [affiliated organizations such as Catholic Charities and United Jewish Communities] are very much at risk and may be put out of business because of the licensing issues, or for these other reasons—it’s very unclear. None of us nonprofits can function without [state] tax exemption. As a practical matter, any large charity needs that real estate tax exemption.’’

Anthony Picarello of the Becket Fund sounded a more ominous note, that this change could fundamentally alter our view of religious liberty. ‘‘The impact will be severe and pervasive,’’ Picarello says flatly. ‘‘This is going to affect every aspect of church- state relations.’’ Recent years, he predicts, will be looked back on as a time of relative peace between church and state, one where people had the luxury of litigating cases about things like the Ten Commandments in courthouses.’’

Picarello points out something I discussed yesterday—that the church is surrounded on all sides by the government, and often the boundaries are hidden because of the ease with which they are navigated. However, as he notes, ‘‘because marriage affects just about every area of the law, gay marriage is going to create a point of conflict at every point around the perimeter.’’

But not all of these scholars agree on the intensity or imminence of these consequences. Doug Kmiec of Pepperdine law school argued that the public could tell the difference between racial discrimination and the differentiation of traditional and same-sex marriage, saying that racial discrimination is ‘‘irrational, and morally repugnant’’ and the issue of same-sex marriage is ‘‘at least morally debatable.’’ Doug Laycock, a religious liberty expert at the University of Texas law school, noted that the legal situation is a long way away from equating sexual orientation with race in the law. However, Stern and Feldblurn were much more clear on the coming legal issues that religious organizations will face in the wake of same-sex marriage.

And it is that distinction that is important—if sexual orientation is like race, then anyone, religious or otherwise, who opposes same-sex marriage will be viewed as and likely treated in the same way as the bigots who opposed interracial marriage. It is the political pressure—and in some cases the legal pressure—that will ‘‘punish’’ those of differing opinions.

For Chai Feldblum, a Georgetown law professor who refers to herself as a leader in the movement to advance LGBT—lesbian, gay, bisexual, transsexual—rights, the emerging conflicts between free exercise of religion and sexual liberty are real. ‘‘’’When we pass a law that says you may not discriminate on the basis of sexual orientation, we are burdening those who have an alternative moral assessment of gay men and lesbians.’’ Raised an Orthodox Jew, Feldblum argues that ‘‘the need to protect the dignity of gay people will justify burdening religious belief, [b]ut that does not make it right to pretend these burdens do not exist in the first place, or that the religious people the law is burdening don’t matter.’’

What effects could this ‘‘sea change’’ have on religious liberty? Let’s consider a few examples.

A religious educational institution could have its admissions policies, employment practices, housing rules, and regulation of clubs challenged. For example, Marc Stern is concerned about a California case where a private Christian high school expelled two girls who according to the school announced they were in a lesbian relationship. Will the schools be forced to tolerate both conduct and proclamations by students they believe to be acting in a sinful manner?

Public accommodation laws can be used to force commercial enterprises to serve all comers, which begs the question of whether religious camps, retreats, or homeless shelters are considered places of public accommodation. Could a religious summer camp operated in strict conformity with religious principles refuse to accept children coming from same-sex marriages? What of a church-affiliated community center, with a gym and a Little League, that offers family programs? Must a religious-affiliated family services provider offer marriage counseling to same-sex couples designed to facilitate or preserve their relationships?

Licensing issues will continue to be a bone of contention in not only adoption but psychological clinics, social workers, and marital counselors. We had to face this issue already in the Access to Recovery Program where program administrators were interpreting language in a way that sought to penalize faith-based providers such as Teen Challenge.

And there are probably a plethora of other areas of friction that will emerge.

Will speech against same-sex marriage be allowed to continue unfettered?

Will anyone be able to again say that marriage should be between a man and a woman without being branded a bigot?

Will a minister be able to preach from I Corinthians 6:9 that the unjust and immoral such as adulterers, prostitutes and sodomites will not inherit the earth?

Will our local Catholic Charities lose their tax-exempt status if they do not bend their religious faith to the new norm?

Will a rabbi or priest be forced to preside over same-sex marriages in order to continue to be able to consecrate traditional marriages?

The scope of the ramifications of this debate are unclear, but there is no doubt that very serious issues arise. As Maggie Gallagher noted in her article, ‘‘Marc Stern is looking more and more like a reluctant prophet: ‘It’s going to be a train wreck,’ he said ‘A very dangerous train wreck.’ ’’

I urge my colleagues to think carefully about the implications of doing nothing to protect the sanctity of marriage. If we do not act, then not only are we leaving this important issue in the hands of unelected judges, we are leaving the fate of all of these faith- based organizations in their hands as well. I urge my colleagues to support this amendment. Let’s move forward in the democratic process and let the people decide.